The first post above links to this intriguing letter from AG Eric Holder which details the significant "downsizing" that would be required within the Justice Department if the sequester's automating budget cuts kick in. The second post concludes with these notable points about how we might sensibly cut some federal costs at limited risk to public saefty:

In a time when we want people off of government assistance, the federal justice system is feeding more people into prison …. and believe me, prison IS government assistance (food, shelter, healthcare, supervision and monthly stipend (yes, inmates are paid)). Are we less safe with guys like Raj Rajaratnam (insider trading) doing only 6 years in prison rather than the 11 years he received? Raj’s long sentence sure did not deter someone from trading on Heinz shares prior to the announcement it was going private at a stock premium. Would a Raj sentence of 6 years uphold respect for the law? I think it would. Do you think Raj, whether he spent 6 years in prison or 11 years, would be any more likely to commit a another crime? I’m thinking Raj is done with trading and doubt he placed any of those suspicious trades on Heinz. Look, the primary difference between an inmate doing 11 years and another one doing 2 has to do with the number of people he/she testified against and not their threat to society.

There is no doubt that long prison sentences make the general public feel good over the short term, but the costs of incarceration go on for the long term. I realize that images of white-collar felons and low-level drug dealers working side by side breaking rocks conjures up feelings of justice. However, we now live in a time when there are video cameras at stop-light intersections, drones that patrol war zones, my iPhone can even find itself, so there has to be a better way to monitor felons (inmates) without having them housed on sprawling government complexes and on the government payroll. Ankle bracelet? GPS? Community service projects? Punishment/Sentences can still be vetted out in years but does an entire prison term need to be served on a government, tax payer subsidized, compound?

"Living Death: Ambivalence, Delay, and Capital Punishment"

Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second. But in fact it is exceptional for a death sentence to cause the death of the individual sentenced. During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.

This Article seeks to investigate the causes of the disparity. It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions. My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates. We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity. We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.

We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today). Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed. To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.

A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful. Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.

In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.

Notable account of "old school" Japanese approach to prisons

This new article appearing in The Economist, headlined "Eastern porridge: Even Japanese criminals are orderly and well-behaved," provides an fascinating international perspective on prison practices. Here are excerpts:

With its façade of red brick, Chiba prison, just outside Tokyo, looks like a Victorian-era British jail. That is where the similarity ends. Prisons in Britain are often loud, dirty and violent, but Chiba resembles a somewhat Spartan retirement home for former soldiers. The corridors and the tiny cells are spotless. Uniformed prisoners shuffle in lockstep behind guards and bow before entering rooms.

The deputy warden, Hiroyuki Shinkai, who once visited British prisons as a UN researcher, was shocked by what he found. He can still recall his surprise at seeing inmates freely mingling and talking. “Japanese penal philosophy is different,” he explains. In Japan, talking is banned, except during break-times. Unpaid work is a duty, not a choice.

Japan incarcerates its citizens at a far lower rate than most developed countries: 55 per 100,000 people compared with 149 in Britain and 716 in America. The country’s justice ministry can also point to low rates of recidivism. Yet increasingly the nation’s 188 prisons and detention centres come in for harsh criticism, particularly over their obsession with draconian rules and secrecy (on February 21st the government unexpectedly announced it had hanged three men for murder), and their widespread use of solitary confinement....

Over two-thirds of the inmates of Chiba prison were convicted for crimes that caused death — mainly murder, arson or manslaughter. Half are serving life sentences and, in Japan, life means life. The average prisoner is 50. Many of them have never used a mobile phone or a credit card. Conjugal visits are banned, so marriages break down.

In the prison workshops, inmates silently make leather shoes and furniture, overseen by a single unarmed guard. No riot has taken place in a Japanese prison since just after the second world war. Escapes are rare, and drugs and contraband almost non-existent. The prison notes that its ratio of one guard to four prisoners is roughly half that in Britain. Yet no one can recall a violent attack on a staff member.

A landmark report in 1995 by Human Rights Watch, a lobby group, said this remarkable order “is achieved at a very high cost”, including the violation of fundamental human rights and falling far short of international standards. Europeans and Americans inside Japan’s prison system have developed mental problems. Yet for Mr Shinkai the differences with the West are a point of pride. “Of course we look too strict to outsiders,” he says. But his inmates, he goes on, all come from Japanese society. For them, it works beautifully.

Students of prison history will know that this account of modern Japanese prisons suggests that they are structured and run in a manner and with a philosophy remarkably similar to the first major American prisons such as Pennsylvania's Eastern State Penitentiary and New York's Auburn Correctional Facility. prison (some history here).

"Pot on the patio? Colorado's 'surreal' path to legalizing marijuana"

In the wake of the decision by voters in Colorado last November to legalize recreational marijuana for adults, the question of how to actually integrate legal pot into the practical, and often bureaucratic, realities of modern American life has fallen on two dozen Coloradans.

By the end of the month, the Amendment 64 Implementation Task Force must submit a report to the Colorado Legislature that lays out its suggestions for how the state should regulate legal marijuana. It has been a curious process.

On one hand, the task force has considered new rules for what Colorado should do when it inevitably becomes a center of "pot tourism," it has debated whether smokers can use their backyard patios to light up, and it has considered how to deal with "marijuana clubs" that will appear. Yet, at the same time, marijuana use remains illegal according to federal law, and the Department of Justice may step in and try to invalidate everything the task force has done.

In a time when as many as 25 states are considering pro-marijuana laws, what Colorado does could be broadly significant. How it converts a massive black market into what experts call "problematic adult commerce" on the fringes of society -- akin to gambling, drinking, and go-go clubs -- all amid lingering legal concerns, could provide a framework for other states to follow.

So far, the results from the task force point to legal marijuana regulations that in many ways mirror regulations on alcohol and tobacco yet, because of the drug's unsettled legal status, are in some ways distinctly separate.
"We made an industry out of cigarettes, we made an industry out of alcohol and now we're creating an industry out of marijuana -- frankly, it's surreal sometimes," says task force member Mary Beth Susman, president of the Denver City Council. "We're making rules about an activity that is illegal according to the federal government, and sometimes we're making rules that in the normal course of events would be illegal themselves in order to stay under the radar of the federal government."

So far, the Obama administration has kept its hands off the emerging experiments in Colorado (and Washington State, where voters also approved a ballot initiative that legalized pot), though it could be waiting until the Legislature formalizes new pot laws. That's expected by May 8.

Last November, 55 percent of Colorado voters approved adult use of marijuana, meaning that the state would regulate the cultivation and sale of marijuana while allowing legal possession of up to 1 ounce per person. As caveats, the referendum allows towns and municipalities to opt out of retail marijuana sales and extends criminal and civil liability to smokers who drive high. The law also allows the state to collect hefty new taxes from license production and retail sales that will go toward state education funds.

Nationally, a slim majority of Americans now support legalization of adult use of marijuana, up from 10 percent in 1971. Some 100 million Americans have tried the drug at least once, 25 million have smoked in the past year, and 14 million are regular users, according to surveys by the US Department of Health and Human Services

Colorado, a pioneer state with heavy libertarian leanings, has become a major destination for free-spirited young Americans. This makes it an apt legalization laboratory, suggests Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML). Colorado has already led the way in setting up separate taxation and code enforcement for medical marijuana dispensaries, which the state approved in 2000. Today, there are more dispensaries in Denver than there are liquor stores.

Moreover, the Amendment 64 task force's work comes as a growing numbers of states and even Congress begin seriously deliberating medical marijuana and decriminalization. According to NORML, 10 states are proposing outright legalization bills, 15 are eyeing medical marijuana bills, and five are considering industrial hemp bills. In total, 25 states are considering more than 45 separate pro-marijuana proposals. On Thursday, Maine lawmakers introduced a Colorado-style bill that would legalize and regulate marijuana to allow adults to use it for recreational purposes.

"Colorado is going to be our first vetting, and they're going to have to go set the standard for a good part of the country on everything from public safety, workplace impairment, custody of children, and defining public use," says Mr. St. Pierre.

That fact has steered the task force's work down peculiar pathways, says Ms. Susman. Some questions are proving difficult to answer. One, she says, is how the state deals with legal smokers who light up in front of children. Other issues include how to appease insurance companies with clear financial interests in the health of consumers, government and law enforcement's responsibility to keep the public safe, and the role of making sure consumers have incentive to use the drug responsibly.

Part of the challenge will be to prove to the federal government that the state is solving a societal problem, not creating or fueling one.
"If the task force members are savvy, they will try to create a regulatory structure that's going to draw the least attention from the federal government as possible," says Rob Mikos, a law professor at Vanderbilt University in Nashville, Tenn....

Ms. Susman says she's caught herself many times during task force deliberations pondering the enormity, and sometimes absurdity, of its task. For example, by setting a very low cap on how much marijuana an out-of-state visitor can buy -- say an eighth of an ounce -- the state can make it prohibitively expensive for drug dealers to use the state as a source.
"If they're going to resell it, they'd have to pay retail 128 times to buy a pound," she says. "Discussing something like that makes me almost want to giggle."

I continue to give this legal reform storm considerable attention because I strongly believe that the success or failure of the legalization experiment in Colorado over the next few years could have a profound impact on national drug policies and criminal justice systems. Especially if advocates of marijuana reform are effective at documenting that the tangible benefits of regulated pot legalization in Colorado outweigh the tangible costs, I think it will be that much easier for these advocates to promote significant reform efforts in other states and at the federal level.

Importantly, I expect that advocates for pot reform in Colorado and elsewhere should have an easier time, at least in the short-term, highlighting tangible benefits from legalization than will opponents be able to pinpoint tangible costs. Proponents of reform should be able to point quickly not only to significant new tax revenues, but also to related job creation and business development resulting immediately from the legalization of a product with significant demand among folks with significant resources. In contrast, because the harms of increased pot use (like increased alcohol use) tend to be long-term, opponents are likely to have little other than the occassional drugged driving anecdote to use to highlight legalization's costs. In addition, many state officials and business leaders in Colorado should, at least initially, be more invested in making legalization work than in advocating for a return to prohibition.

If I am right that reform advocates can and will report lots of early "success" with legalization in late 2013, then it seems likely that local, state and national pot policy becomes a very big issue is the 2014 election cycle. And if swing state Colorado has continued "success" with legalization in a few years, it seems possible (perhaps even likely) that some or all of the mainstream candidates who run for President in 2016 will be on the side of reform at the federal level rather than persistent prohibition.

As reported in this Baltimore Sun article, the Maryland "General Assembly took an important step toward repealing Maryland's death penalty Thursday night when a key committee, for the first time in decades, approved a bill to end capital punishment." Here is more on this development and Maryland's textured modern capital punishment story:

The Senate Judicial Proceedings committee voted 6-5 to send Gov. Martin O'Malley's death penalty bill to the Senate floor, with Sen. Robert A. Zirkin, a Baltimore County Democrat, dropping his long-held opposition to repeal of capital punishment and providing the decisive vote....

The bill repealing the death penalty is expected to go before the full Senate next week. Advocates say they have the votes there and in the House of Delegates to pass it, and they welcomed Thursday's action by a committee that has been seen as an obstacle to their position.

"I'm elated that the committee has come to a place where they recognize it's time to have this vote on the floor," said Jane Henderson, executive director of Citizens Against State Executions. Henderson said the NAACP's push for repeal in Maryland was "instrumental" in changing the dynamic this year.

With Zirkin's vote, she said, repeal advocates count at least 26 Senate votes for the bill — two more than needed. Henderson said she's confident the Senate would muster the 29 votes needed to end a filibuster if one is attempted.

Before casting his vote, Zirkin told the committee he would probably never be comfortable with his decision no matter which way he came down. He said he was torn between his emotional response toward brutal murderers and the "legal and practical" arguments that the death penalty system doesn't work.
"As heinous and awful as these individuals are, I think it's time for our state not to be involved in the apparatus of executions," he said....

The Judicial Proceedings vote for repeal was the first for that committee since 1969, when the measure was defeated on the Senate floor, according to the Assembly's library staff. The panel temporarily blocked repeal in 2009, but the measure was brought to the floor in a rarely used parliamentary maneuver. The bill was amended on the floor that year to retain the death penalty but to allow it only in cases where the prosecution could meet one of the highest evidentiary standards in the country.

Five men, all convicted murderers, remain on death row in Maryland for killings that go back as far as 1983. The state has not executed a prisoner since 2005. The Maryland Court of Appeals imposed a de facto moratorium in 2006 when it threw out the rules under which executions are carried out. Those regulations have not been replaced amid complaints from death penalty supporters that the O'Malley administration has been dragging its feet....

On the death penalty, [a recent] poll found that Marylanders are closely divided — with 48 percent opposing repeal and 42 percent favoring it. Other polls have found that when voters are asked whether life without parole would be an acceptable alternative, a majority say yes.

Death penalty repeal supporters have said they were determined to bring a "clean" bill to the Senate floor — that is, without any amendments creating exceptions for certain types of murders....

Senate President Thomas V. Mike Miller has said he expects that if the General Assembly approves a repeal law, opponents will gather enough signatures to petition the measure to a vote in the November 2014 election. He said nothing should be included in the bill that could keep the issue from the voters.

February 21, 2013

US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data

I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again. And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:

This report includes an extensive set of tables and charts presenting
fiscal year quarterly data on cases in which the offender was sentenced
during fiscal year 2012. The report also provides an analysis of
sentencing trends over five years for several key sentencing practices.

Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.

Japan's new government embraces death penalty via three new executions

As reported in this new piece from The Guardian, headlined "
Japan executions resume with three hangings: Hopes dashed of reprieve under Shinzo Abe's government with first sentences carried out since September 2012," Japan new government carried out its first set of executions this week. Here are details on the latest executions and concerning Japan's recent capital punishment history:

Japan has carried out three executions -- the first since the country's conservative prime minister, Shinzo Abe, was elected last December, and a sign that Tokyo will defy international pressure to abolish the death penalty.

The justice ministry said the executions were carried out in the early hours of Thursday in three different locations. One of the condemned men, Kaoru Kobayashi, had been sentenced to death for the abduction, sexual assault and murder of a seven-year-old schoolgirl in 2004. He sent a photograph of the murdered girl to her mother.

The executions, the first since September 2012, could signal a return to more regular hangings under the current justice minister, Sadakazu Tanigaki.
"I ordered the executions after giving them careful consideration," Tanigaki told reporters. "These were extremely cruel cases in which the victims had their precious lives taken away for very selfish reasons."

Amnesty International Japan condemned the executions. "The Japanese government cannot be excused from abiding by international human rights standards, just by citing opinion among the public," it said in a statement. Opinion polls put support for capital punishment among the Japanese at about 80%.

Earlier this year Tanigaki indicated he would have no hesitation in signing execution orders; some previous holders of the post had refused to approve them, leading to a de facto moratorium.
"I will have to do what needs to be done according to the rule of law," he told journalists, adding that the secrecy surrounding hangings would continue. Inmates are given very little notice before they are led to the gallows and their families are informed only after the executions have taken place. "Even death row inmates have guarantees of privacy and we have to consider the feelings of their relatives," Tanigaki said. "I don't think it is necessarily a good idea to release more information."

At the end of last year Japan had 133 inmates on death row, the highest number since records were first kept in 1949. They include Shoko Asahara, leader of the doomsday cult behind the 1995 sarin gas attacks on the Tokyo subway in which 13 people died and thousands were made ill.

The previous government, led by the left-of centre Democratic party of Japan (DPJ), executed nine people during its three years and three months in office. That included an 18-month period from July 2010 in which no hangings took place. In the three years to 2008 there were 28 executions under LDP administrations.

The DPJ raised hopes among abolitionists in 2010 when it established a panel to look into Japan's use of capital punishment but the body was disbanded without reaching a conclusion in January 2012.

George Will makes strong (conservative?) case against solitary confinement

“Zero Dark Thirty,” a nominee for Sunday’s Oscar for Best Picture, reignited debate about whether the waterboarding of terrorism suspects was torture. This practice, which ended in 2003, was used on only three suspects. Meanwhile, tens of thousands of American prison inmates are kept in protracted solitary confinement that arguably constitutes torture and probably violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

Noting that half of all prison suicides are committed by prisoners held in isolation, Sen. Richard Durbin (D-Ill.) has prompted an independent assessment of solitary confinement in federal prisons. State prisons are equally vulnerable to Eighth Amendment challenges concerning whether inmates are subjected to “substantial risk of serious harm.”

America, with 5 percent of the world’s population, has 25 percent of its prisoners. Mass incarceration, which means a perpetual crisis of prisoners re-entering society, has generated understanding of solitary confinement’s consequences when used as a long-term condition for an estimated 25,000 inmates in federal and state “supermax” prisons — and perhaps 80,000 others in isolation sections within regular prisons. Clearly, solitary confinement involves much more than the isolation of incorrigibly violent individuals for the protection of other inmates or prison personnel.

Federal law on torture prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” And “severe” physical pain is not limited to “excruciating or agonizing” pain, or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.” The severe mental suffering from prolonged solitary confinement puts the confined at risk of brain impairment.

Supermax prisons isolate inmates from social contact. Often prisoners are in their cells, sometimes smaller than 8 by 12 feet, 23 hours a day, released only for a shower or exercise in a small fenced-in outdoor space. Isolation changes the way the brain works, often making individuals more impulsive, less able to control themselves. The mental pain of solitary confinement is crippling: Brain studies reveal durable impairments and abnormalities in individuals denied social interaction. Plainly put, prisoners often lose their minds....

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

"Defunding State Prisons"

The title of this post is the title of this new article now on SSRN authored by
W. David Ball. Here is the abstract:

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

Amusingly, in this post at Prawfs, Giovanna Shay describes David's work in this piece as part of the "Best Trilogy Since Star Wars." That post explains the positive description this way:

Okay, that might be over-selling it just a bit. But David Ball of Santa Clara recently has posted to SSRN the third in his trilogy of articles inspired by the California prison "realignment."... In his three articles, David demonstrates that counties rely on state corrections facilities (and funding) to varying degrees, and makes proposals that he hopes could require counties to internalize the costs of their reliance on incarceration.... Whatever your ultimate assessment of David's proposals, this is one trilogy definitely worth checking out. (I will spare you further Star Wars references).

This recent post, titled "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?", engendered a lengthy debate over federal sentencing law and practice as applied to a pair of new high-profile federal defendants. Now, this New York Times article, headlined "Jesse Jackson Jr. Pleads Guilty: ‘I Lived Off My Campaign’," reports that federal prosecutor, apparently parroting the recommendations of the federal sentencing guidelines, have already urged significant prison terms for Jesse and Sandi Jackson. Here are the details:

Jesse L. Jackson Jr., the former Democratic representative from Illinois, pleaded guilty on Wednesday to one felony fraud count in connection with his use of $750,000 in campaign money to pay for living expenses and buy items like stuffed animals, elk heads and fur capes.

As part of a plea agreement, prosecutors recommended that Mr. Jackson receive a sentence of 46 to 57 months in prison. The federal judge overseeing the case, Robert L. Wilkins, is scheduled to sentence Mr. Jackson on June 28....

“Guilty, Your Honor — I misled the American people,” Mr. Jackson said when asked whether he would accept the plea deal. Mr. Jackson’s father, the Rev. Jesse L. Jackson, his mother and several brothers and sisters accompanied him to the hearing.

Mr. Jackson’s wife, Sandi, also accompanied him, and later in the day she pleaded guilty to a charge that she filed false income tax statements during the time that Mr. Jackson was dipping into his campaign treasury. Prosecutors said they would seek to have her sentenced to 18 to 24 months....

Last summer, Mr. Jackson took a medical leave from Congress and was later treated for bipolar disorder. After winning re-election in November, he resigned, citing his health and the federal investigation into his use of campaign money.

After the hearing, Mr. Jackson’s lawyer, Reid H. Weingarten, said his client had “come to terms with his misconduct.”
Mr. Weingarten said that Mr. Jackson had serious health issues that “directly related” to his conduct.
“That’s not an excuse, it’s just a fact,” Mr. Weingarten said.

Court papers released by federal prosecutors on Wednesday provided new details about how Mr. Jackson and his wife used the $750,000 in campaign money to finance their lavish lifestyle.

From 2007 to 2011, Mr. Jackson bought $10,977.74 worth of televisions, DVD players and DVDs at Best Buy, according to the documents. In 2008, Mr. Jackson used the money for things like a $466.30 dinner at CityZen in the Mandarin Oriental in Washington and a $5,587.75 vacation at the Martha’s Vineyard Holistic Retreat, the document said.

On at least two instances, Mr. Jackson and his wife used campaign money at Build-A-Bear Workshop, a store where patrons can create stuffed animals. From December 2007 through December 2008, the Jacksons spent $313.89 on “stuffed animals and accessories for stuffed animals” from Build-A-Bear, according to the documents....

Documents released on Friday showed how Mr. Jackson used his campaign money to buy items like fur capes, celebrity memorabilia and expensive furniture.
Among those items were a $5,000 football signed by American presidents and two hats that once belonged to Michael Jackson, including a $4,600 fedora.

Because neither Jesse Jr. nor Sandi Jackson would appear to present any threat to public safety whatsoever, I am not quite sure why federal prosecutors believe that imposing a sentence "sufficient but not greater than necessary" to achieve congressional sentencing purposes requires a muti-year prison term for both of them. I fully understand, of course, that the sentences here ought to be severe enough to serve general deterrence purposes. But I am not sure that such extended prison terms are needed, especially if the Jacksons' sentences require them now to pay significant criminal fines and penalities in addition to forfeiting all ill-gotten gains and paying all their tax liabilities.

Former federal prosecutor Bill Otis has said repeatedly in recent threads that federal prosecutors should not have their sentencing recommendations defined by applicable sentencing guidelines. But I surmise that the prosecutors' recommendations here that Jesse Jr. get 46 to 57 months in prison and that Sandi get 18 to 24 months are drawn directly from the guidelines. (We can be quite sure that the defense attorneys in these cases will not draw their recommendations from the guidelines, and I would guess that the defense will end up making full-throated arguments for non-prison sentences for both Jesse Jr. and Sandi.)

February 20, 2013

Does Chaidez expand the reach of Padilla even while rejecting its retroactive application?

As noted in this prior post, the Supreme Court handed down four criminal justice decisions today. The most notable and potentially consequential ruling came in Chaidez v. US (available here) in which the Court, per Justice Kagan representing seven votes and speaking for six Justices (with Justice Thomas concurring separately), ruled that the Supreme Court's 2010 decision Sixth Amendment decision in Padilla is not to be applied retroactively to cases which were final when Padilla was handed down.

Upon first blush, this ruling might seem a big loss for defendants, and it is for those like petitioner Roselva Chaidez, who hoped to undo her guilty plea because long ago she was poorly advised by her lawyer concerning the immigration consequences of her conviction. But for those in the defense bar eager to see the Padilla Sixth Amendment rule expanded to cover other forms of collateral consequences, I think there more to like than dislike in Chaidez. Throughout her opinion for the Court, Justice Kagan seems careful to avoid stating or even suggesting that Padilla is only about the unique "collateral consequence" of deportation. Especially notable in this regard is a phrase on pp. 10-11 of the slip opinion which seems to state that "Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment" (my emphasis added).

Though I have not followed closely the application of Padilla in lower courts, my sense is that at least a few courts have been keen to hold or suggest that the Padilla Sixth Amendment rule applies only to the unique collateral consequence of deportation. After Chaidez, it should be at least a bit harder for lower courts to limit Padilla's prospective application to only immigration consequences.

Some notable recent NPR coverage of modern incarceration realities

I was pleased to hear on my local NPR station this afternoon, while I was driving around in my Prius looking for a good place to get a latte, this lengthy feature story concerning US incarceration levels on the On Point program. Here is how the program is described via its website:

The Cost Of Prison: States fed up with high prison costs and mandatory sentencing move to change. Must the U.S. be number one in prisoners?

The USA is number one in the world when it comes to the number of people in prison. Bigger than China. Bigger than Russia. America’s prison population is tops. 2.2 million. Bigger than fifteen American states. And its incarceration rate is number one..... All that American imprisonment is very expensive. And very debatable when it comes to effectiveness, fairness -- to justice itself. Now states across the country are reconsidering the mandatory sentencing policies and more that filled those cells. This hour, On Point: slimming down American prisons.

In addition, last week NPR had two new pieces as part of this special series titled "The Legacy And Future Of Mass Incarceration." Here are links and brief descriptions:

Decades On, Stiff Drug Sentence Leaves A Life 'Dismantled': George Prendes was 23 when he was sentenced under New York's Rockefeller drug laws — tough mandatory sentencing guidelines for nonviolent drug crimes. The 15 years Prendes served for a drug transaction still reverberate for him and his family.

The Drug Laws That Changed How We Punish: Forty years ago, New York enacted tough laws in response to a wave of drug-related crime. They became known as the Rockefeller drug laws, and they set the standard for states looking to get tough on crime. But a new debate is under way over the effectiveness of such strict sentencing laws.

"A Company That Runs Prisons Will Have Its Name on a Stadium"

In recent years, where stadium naming rights could be sold, universities and professional sports teams have sold them — to airlines and banks and companies that sell beer, soda, doughnuts, cars, telecommunications, razors and baseball bats....

On Tuesday, that trend took another strange turn when Florida Atlantic University, in Boca Raton, firmed a deal to rename its football building GEO Group Stadium. Perhaps that pushed stadium naming to its zenith, if only because the GEO Group is a private prison corporation.

For this partnership, there is no obvious precedent.
The university’s president described the deal as “wonderful” and the company as “well run” and by a notable alumnus. But it also left some unsettled, including those who study the business of sports and track the privatization of the prison industry. To those critics, this was a jarring case of the lengths colleges and teams will go to produce revenue, of the way that everything seems to be for sale now in sports — and to anyone with enough cash.

“This is an example of great donor intent, terrible execution,” said Paul Swangard, the managing director at the University of Oregon Warsaw Sports Marketing Center. “Here’s a guy with strong ties to the university, who wants to make a difference, and is mixing his philanthropic interest with a marketing strategy that doesn’t make any sense.”

The GEO Group, which is based in Boca Raton, secured the naming rights with a $6 million gift, paid out over 12 years through its charitable arm, the largest such donation in Florida Atlantic’s athletic history. In a news release, the university said the money would finance athletic operations, the stadium, scholarships and “academic priorities.”

The stadium, which opened in the fall of 2011, cost $70 million and seats more than 29,000. It offers 6,000 premium seats, 24 suites and 26 loge boxes.
In a telephone interview, the university’s president, Mary Jane Saunders, noted that GEO’s chairman, George Zoley, had two degrees from Florida Atlantic and once served as chairman of the Board of Trustees. Four members of the board, Saunders added, have also worked for the GEO Group, including two past student government presidents. The company’s corporate headquarters overlook the stadium....

Critics say the cost may be too high. One is Bob Libal, the executive director of Grassroots Leadership, a social justice group that opposes private prison systems.
Libal said the GEO Group “poured enormous resources” in recent years into “attempting to take over a large portion of the Florida prison system.” He said the company’s usual practices included lobbying and charitable donations, often in areas where it operated facilities or planned to. To that end, this move could represent a way for the company to rebrand itself in Florida, he added....

GEO Group reported revenues in excess of $1.6 billion in 2011, income generated mostly from state and federal prisons and detention centers for illegal immigrants. The company owns or runs more than 100 properties that operate more than 73,000 beds in sites across the world. It holds nearly $3 billion in assets.
The company has been opposed by civil liberty and human rights groups and immigrant rights organizations. It has been cited by state and federal regulators and lost a series of high-profile lawsuits....

Asked if Florida Atlantic had looked into the allegations against the GEO Group, Saunders said, “We think it’s a wonderful company, and we’re very proud to partner with them.”
An N.C.A.A. spokeswoman said individual universities made decisions regarding naming rights, with no N.C.A.A. involvement.

Swangard, at the University of Oregon, said he told his students that “sponsorship begins and ends with objectives” and “sponsorship is not philanthropy.” He said universities should draw the line where they can defend the natural association that comes with the company they do business with.
“It can’t just be about the money,” he said. “That’s great, but at what cost? Now, across the country, they’re going to say that Florida Atlantic can change its uniforms to stripes. That’s not fair. But that’s reality.”

As are the financial requirements of big-time college sports. To that end, said David Ridpath, a professor of sports administration at Ohio University and a member of the Drake Group, a network of professors who lobby for academic integrity in college sports, those constraints must also be considered.
In an e-mail, he described his response to the naming rights deal as “ambivalent,” adding: “The short answer is, I understand to an extent. But it does appear we’re prostituting ourselves to the highest bidder regardless of what they represent. Again — the sanctity of higher education matters little when the dollars are needed.”

I tend not to be convinced in the big-money world of college sports by a claim that the "sanctity of higher education" is central to any decisions that get made concerning a university's sports program. Nevertheless, because of the unique products and brand that GEO Group represents, this is an amazing story whether or not one is a rabid college sports fan or a rabid sentencing fan (or both, as in my case).

Among other notable parts of this story is the new opportunity for new kinds of jokes about a lot more than the future uniforms of Florida Atlantic players. Is it wrong to start joking about Jerry Sandusky now having a new shot at coaching again or about the recruits being told that Michael Vick and Plaxico Burress are now kind of like alums? Should we say that this deal brings new meaning to concerns about the so-called "school-to-prison" pipeline? And might Florida Atlantic or the GEO Group bring some kind of court action to prevent anyone from now referring to Michigan's stadium as "The Big House"?

SCOTUS decides Padilla ruling on IAC claims is not retroactive in Chaidez (and lots of other CJ stuff)

We have [an] opinion ... in Chaidez v. U.S.
The opinion is by Kagan. Seventh Circuit is affirmed.
The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided.
It is seven to two.
Justice Thomas concurs in the judgment only. Justice Sotomayor dissents, joined by Ginsburg....

Padilla required defense attorneys to inform defendants about the possible effects of a guilty plea on their immigration status.
The Chaidez opinion can be found here. So Padilla does not apply retroactively to cases that are already final on direct review.

There are lots more criminal ruling coming over the wire this morning as well, and here are snippets (and links) to the other criminal justice decisions handed down by SCOTUS today:

The second case is Evans v. Michigan.
Decision is by Justice Sotomayor, vote is eight to one, with Alito dissenting.
Michigan Supreme Court is reversed. Double Jeopardy Clause bars retrial for Evans's crime. The judge had directed a verdict of not guilty during the trial based on a legal error. That kind of acquittal, the Court says today, bars retrial.
The opinion in Evans is up here....

We have the third opinion, in Johnson v. Williams. The opinion is by Justice Alito.
The result is unanimous, although Scalia concurs in judgment only.
The Ninth Circuit is reversed.
Here is the holding: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.
Read Johnson v. Williams here.

We have the fourth opinion, in Henderson v. United States.
Justice Breyer has the opinion. The decision of the Fifth Circuit is reversed.
The vote is six to three; Scalia dissents, joined by Thomas and Alito. The Court holds that regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review. The Henderson opinion is here.

As the headline to this post suggests, for sentencing fans, I believe Chaidez is the most notable and consequential of the quartet of criminal justice rulings from SCOTUS this morning. But, after I likely spend much of the day reading all of these opinions, I will report on anything I find within this big batch of mixed results that might change my view.

As reported in this new AP piece, headlined "Colorado marijuana regulators sign off on pot tourism," the task force working through the range of new issues raised by marijuana legalization in Colorado has reached a significant decision about how to handle folks traveling to the state to partake in its new legal marketplace. Here are excerpts from the article:

Marijuana tourism is on the way to Colorado, under a recommendation made Tuesday by a state task force to regulate the drug made legal by voters last year.
But Colorado should erect signs in airports and borders telling visitors they can't take pot home, the task force recommended.

Colorado's marijuana task force was assembled to suggest regulations for pot after voters chose to flout federal drug law and allow its use without a doctor's recommendation. Made up of lawmakers, law enforcement authorities and marijuana activists, the task force agreed Tuesday that the constitutional amendment on marijuana simply says that adults over 21 can use the drug, not just Colorado residents. If lawmakers agree with the recommendation, tourists would be free to buy and smoke marijuana.

"Imposing a residency requirement would almost certainly create a black market for recreational marijuana in the state," said Rep. Dan Pabon, a Denver Democrat who sits on the task force.
Tourists could see purchasing caps though, possibly as low as an eighth of an ounce per transaction.

Afraid that marijuana tourism could open the door for traffickers to load up and take it across state borders for illegal sale, task force members agreed that non-residents should be able to buy only limited amounts, though a specific amount wasn't set.
"Marijuana purchased in Colorado must stay in Colorado," Pabon warned.
"We could attract greater federal scrutiny and displeasure of our neighbors," if marijuana flows across state lines, he said.

Task force members were less successful agreeing to recommendations on marijuana growing and public use. Colorado's marijuana law allows home growing but requires plants to be in a locked, secure location out of public view. The task force couldn't agree whether a "locked" and "secure" location would mean a backyard surrounded by a fence, or whether an enclosure such as a shed or greenhouse should be mandatory.

One of the task force's most vocal marijuana critics, Greenwood Village Police Chief John Jackson, worried that backyard pot gardens would need more than a chain-link fence to keep kids out.
Not all task force members agreed. User advocate Meg Sanders said the covering requirement wouldn't be fair to rural Coloradans....

Public use also prompted a dispute that wasn't resolved Tuesday. Jackson and others wanted to ban marijuana use on publicly visible patios, porches and backyard. Marijuana activists chafed.
"So I can drink a beer on my porch? But I can't smoke a joint?" asked marijuana advocate Christian Sederberg.

State Sen. Cheri Jahn, D-Wheat Ridge, said lawmakers would hesitate to regulate something legal people do on private property. What about backyard grills that send the smell of hamburgers into the nose of a neighbor who's vegetarian?, she asked.
"I don't know how far we want to go telling people what they can't do on their own porches," she said....

The task force has until Feb. 28 to recommend marijuana regulations, which will ultimately be set by the state Legislature and the Department of Revenue, the agency which oversees gambling and alcohol and will also regulate recreational pot.

February 19, 2013

Judicious judicial views from US District Judge Polster when handing down Amish beard-cutting sentences

As regular readers know, the recent federal sentencing proceedings surrounding Amish defendants convicted for hate crimes generated considerable debate and commentary in this space. I was pleased to learn that, among those following some of the blog discussion, was ND Ohio US Attorney Steven Dettelbach. I know this because USA Dettelbach late last week forwarded me a copy of parts of the sentencing transcript from the proceedings before US District Judge Dan Polster for posting. USA Dettelbach also sent along these comments in response to this earlier guest-post about the sentencing (which I have modified slightly for clarity while preserving the substance and which I have received permission to post along with the sentencing transcript):

"The guest post failed to include any mention whatsoever of the comments that the sentencing Judge made. It is possible that the guest columnist missed that portion of the sentencing, but some mention or discussion of the sentencing Judge's reasons and rulings would have been important in any fair analysis -- much less a critique -- of a sentence handed down by that Judge. Indeed, such comments might also be pertinent in fairly analyzing the actions of the government in a case before that Judge as well. In fact, the exercise of such discretion, and the reasons provided, would be particularly pertinent to those who espouse the opinion that judges should be afforded discretion in sentencing cases that they hear as neutrals."

Is Georgia likely to carry out tonight's scheduled execution of Warren Lee Hill, who is likely mentally retarded?

I have not blogged much about the possible execution of Warren Lee Hill, which is scheduled to be killed by the state of Georgia later tonight. Given the considerable evidence that Hill is likely mentally retarded and that his lawyers now have more doctors prepared to testify to this fact, I had thought there was a real good chance that a federal court would step in and now reconsider Hill's claims that he is not constitutionally eligible for execution under the Supreme Court's 2002 Atkins ruling.

Warren Lee Hill, an intellectually disabled inmate with an I.Q. of 70, is scheduled for execution today in Georgia at 7 p.m.

In 2002, the Supreme Court banned capital punishment for the intellectually disabled. But, alone among the states, Georgia requires a defendant to prove such a disability beyond a reasonable doubt — a heavy a burden of proof because it is so easy for a state to cast doubt on evidence concerning mental capacity.

Last Thursday, Mr. Hill’s lawyers announced what should be crucial news in the case. The three experts for the state who said in 2000 that Mr. Hill did not meet the criteria for intellectual disability have reversed their views....

These reversals of opinion are “the equivalent of an exoneration,” as Mr. Hill’s lawyers have explained: experts for Mr. Hill and for the state now agree that he is intellectually disabled beyond a reasonable doubt.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution. On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

I have long thought it problematic that the US Supreme Court has been willing, for now more than a decade since its Atkins Eighth Amendment ruling, to let each individual jurisdiction make up its own distinctive procedures for implementing Atkins. And I have long believed that SCOTUS would have to take up this issue if and when a particular defendant appears headed to execution despite strong evidence of mental retardation. Thus, I continue to think SCOTUS will jump in at the last minute if the Georgia clemency board and the Georgia Supreme Court both deny Hill any relief or any stay this afternoon. But time is now sure running short for Hill and his lawyers.

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment. The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory Guidelines in individual cases. But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized. The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences. Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall. Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations. The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves. When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime. Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved. The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion. The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

A big day for search and seizure fans via today's SCOTUS opinions

The US Supreme Court handed down four merits opinions in previously argued cases today, and two of them involve criminal justice issues. Because the cases involve the front-end of the CJ system (police practices) rather than the back end (sentencing), for now I will be content just to report on the SCOTUSblog reports on these two rulings (with a few tweaks for clarity):

The Court holds that because training and testing records supported the dog's reliability, and the defendant failed to undermine that evidence, there was probable cause to search the defendant's truck.... Here's a photo of Aldo, the dog in that case.

Here's the opinion in Florida v. Harris.... The Harris opinion does not refer to the Jardines opinion, so we may not get it today after all.
From the Harris opinion: "The Florida Supreme Court flouted this established approach to determining probable cause." (Ouch.)...

Third opinion -- Bailey v. United States -- per Kennedy, the Second Circuit is reversed. The vote is 6-3, with Breyer, Thomas, and Alito dissenting....

The Court holds that Michigan v. Summers is limited to the immediate vicinity of the premises.
Justice Scalia writes separately. Kagan and Ginsburg join both the Court's opinion and the Scalia concurrence.

Grey Lady has lots of sentencing stories fit to print today

Seemingly just conincidentally, the New York Times has these three notable sentencing-related pieces in its print edition today. Here are the headlines and the start of the stories in the order they appear in the paper:

Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system. He can start by pushing Congress and the United States Sentencing Commission to fix the unfair problem of excessive mandatory minimum sentences.

Criticized for letting Wall Street off the hook after the financial crisis, the Justice Department is building a new model for prosecuting big banks.
In a recent round of actions that shook the financial industry, the government pushed for guilty pleas, rather than just the usual fines and reforms. Prosecutors now aim to apply the approach broadly to financial fraud cases, according to officials involved in the investigations.

Why are so many American families trapped in poverty? Of all the explanations offered by Washington’s politicians and economists, one seems particularly obvious in the low-income neighborhoods near the Capitol: because there are so many parents like Carl Harris and Charlene Hamilton.

For most of their daughters’ childhood, Mr. Harris didn’t come close to making the minimum wage. His most lucrative job, as a crack dealer, ended at the age of 24, when he left Washington to serve two decades in prison, leaving his wife to raise their two young girls while trying to hold their long-distance marriage together.

February 18, 2013

You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant. (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.) Today, however, as the title of this post highlights, I am changing the script after being inspired by this Chicago Tribune article about a latest very high-profile federal political corrpution case. the article is headlined "Lawyers: Jackson Jr., wife intend to plead guilty to charges," and here are the (not so simple) basics:

Jesse Jackson Jr. and his wife Sandi intend to plead guilty to federal charges alleging the former congressman misused $750,000 in campaign funds while she understated their income on tax returns for six years, their lawyers say.

Jackson Jr., 47, a Democrat from Chicago, was charged in a criminal information Friday with one count of conspiracy to commit wire fraud, mail fraud and false statements. He faces up to five years in prison, a fine of up to $250,000 and other penalties.

Sandi Jackson was charged with one count of filing false tax returns. She faces up to three years in prison, a fine of up to $250,000 and other penalties.

Jackson Jr. is accused of diverting $750,000 in campaign funds for personal use. Federal authorities allege that Jackson Jr. used campaign funds to purchase a $43,350 men’s gold-plated Rolex watch, $5,150 worth of fur capes and parkas, and $9,588 in children’s furniture. The purchases were made between 2007 and 2009, according to the criminal information, which authorities noted is not evidence of guilt....

The government also alleged that Jackson Jr. made false statements to the House of Representatives because he did not report approximately $28,500 in loans and gifts he received. "He has accepted responsibility for his actions and I can confirm that he intends to plead guilty to the charge in the information," Jackson Jr.'s attorney Brian Heberlig said.

Sandi Jackson is accused of filing incorrect joint tax returns with her husband for calendar years 2006 through 2011, reporting income “substantially less than the amount of income she and her husband received in each of the calendar years,” with a substantial additional tax due. Her attorneys released a statement saying she has "reached an agreement with the U.S. attorney’s office to plead guilty to one count of tax fraud."

Jackson Jr. stepped down from the House of Representatives on Nov. 21, citing both his poor health and an ongoing federal probe of his activities. In a statement then, he said he was doing his best to cooperate with federal investigators and to accept responsibility for his “mistakes.”...

Sandi Jackson's attorneys released a statement saying she "has accepted responsibility for her conduct, is deeply sorry for her actions, and looks forward to putting this matter behind her and her family. She is thankful for the support of her family and friends during this very difficult time."...

The Rev. Jesse Jackson said he would "leave it up to the courts system" to determine his son's fate. "We express our love for him as a family," he said....

Last June, Jackson Jr. began a mysterious leave of absence for what originally was called “exhaustion” but later emerged as bipolar disorder. He spent months in treatment and won re-election Nov. 6 despite never returning to service in the House or staging a single campaign appearance....

Jackson Jr. was first elected to Congress in 1995. Sandi Jackson was a Chicago alderman until she resigned her post last month. They have two children.

Federal sentencing fans know well that the willingness of the Jacksons to accept responsibility and plead guilty should help them considerably when a federal judge is tasked with imposing a sentence on the alleged federal charges. Indeed, I have to assume that this willingness to plead guilty is a reason that the initial charges in this case appear to limit Jesse's maximum prison sentence to only five years and Sandi's maximum sentence to only three years.

But, regular readers should recall from recent discussions over the high-profile Amish beard-cutting federal case, federal prosecutors not only need to decide what criminal charges to file, but they also need to decide what sentence should be recommended after convictions are secured. Ergo the question for readers in the title of this post: assuming the Jacksons both plead guilty and show deep and genuine remose for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?

P.S. Depite the US Sentencing Commission's website still being down (grrr....), I was able to do a quick guidelines guestimate that Jesse Jr. would be facing, at the very least, three or more years in federal prison as a recommended guideline range (principally because the "loss" amounts alleged here are pretty high). But, of course, as Bill Otis was quick to remind us in the Amish beard-cutting conversation, federal prosecutors need not (and arguably should not) utilize the guidelines range as a starting metric for any prosecutorial sentencing recommendations.

UPDATE: I have added a picture of the Jackson family to this post in part because I had been wondering about the ages of their two children. Though the picture reprinted here may be a bit dated, I have confirmed (via this Wikipedia entry) that the kids are still pretty young — ages 12 and 9 as of this writing — which means they would likely be harmed greatly if both their parents are sent to prison at the same time. Ergo, if any would-be federal prosecutors are inclined to recommend prison sentences for both Jessie Jr. and Sandi, I wonder if you would oppose a likely request from the defense to stagger any prison terms so that the Jackson children can always have at least one parent on the outside.

"Koch Death Penalty Arguments Still Persuasive"

The title of this post is the headline of this interesting new commentary noting one aspect of the life of the famous former NYC mayor Ed Koch. Here is how the commentary starts:

The passing of former New York Mayor Ed Koch on February 1 brings to mind one of the most controversial things he ever did as a Democrat in the heart of American liberalism. In 1985, the three-term (January 1, 1978 - December 31, 1989) mayor wrote an essay defending the death penalty. He even had the temerity to declare, "Life is indeed precious and I believe the death penalty helps to affirm that fact."

Though it outraged liberals and "progressives" among the nation's esteemed "intelligentsia," Koch's essay reflected the convictions of most Americans, then as now, as opinion polls have consistently shown a substantial majority in favor of the death penalty.

Though this new commentary did not link to the old Ed Koch essay being referenced, I found this reprinting of the Koch essay on-line. This link reports that the essay ran under the headline "Death and Justice: How Capital Punishment Affirms Life," and first appeared in The New Republic in April 1985.

Is a (harmful?) gray market inevitable even if pot becomes fully legal?

The question in the title of this post (which itself is full of questions) is prompted by this new local article out of Colorado, which is headlined "Marijuana-for-donation swaps test limits of Colorado law." Here are excerpts from the press report:

His store's location stinks, the owner of the head shop admits.
It's in a nondescript building on an out-of-the-way road below the Colfax Avenue viaduct across from Sports
Authority Field at Mile High. Unless you're trying to find Broncos parking, you might never even know there's a
there there for a store to be.

So, to bring feet to his street, the owner of 4 Strains Pipe and Tobacco — which sells supplies for smoking this, that
and what have you — came up with this marijuana-tinged ad on Craigslist:
"CO AMENDMENT 64 COMPLIANT.
21 AND UP GET YOUR 2 GRAMS OF BUD FREE WITH $30 OR MORE PURCHASE IN OUR HEAD SHOP.
THIS IS FREE AS A GIFT. ONE GIFT PER DAY PER PERSON.
NO JOKE."

In post-marijuana-legalization Colorado, the pitch is bold. It's creative. But is it legal?
It depends on the definition of "remuneration."

"It's a tricky issue," says Christian Sederberg, an attorney who helped write Amendment 64, which legalized limited
possession and — eventually, but not yet — retail sales of marijuana in Colorado.
Since Colorado voters approved Amendment 64 in November, dozens of offers for "free" marijuana have sprung up
on the frontier between legal and illegal.

Craigslist is home to numerous ads offering free marijuana for a donation. Backpage, another ad site, has more.
Each ad has essentially the same hook: It's not the pot you're paying for.
"i can gift my smoke to others and am taking donations for power/rent," one ad states.

Amendment 64 allows adults to give one another up to an ounce of marijuana, provided it is done "without
remuneration." What exactly that means, though, is still being worked out by lawmakers, regulators and a task force
appointed to suggest rules for legal marijuana in the state.

Ro Silva, a spokeswoman for the Colorado Department of Revenue, which will eventually oversee
recreational-marijuana businesses, said the state currently doesn't have any rules on when an exchange of marijuana
and money is a sale and when it's something else.

The owner of 4 Strains — who asked to be identified only as Mike P. because he is worried about robbers coming to
his home — said he consulted with a lawyer prior to posting his ad and is doing everything in good faith with the
law.
"The marijuana is not for sale," he said. "You're actually purchasing smoking accessories, tobacco, T-shirts, fine art.
As a gift for them patronizing our store, we're giving them 2 grams of marijuana for free. ... It's just an incentive."

Sederberg, though, said the position is a risky one and that police and the courts could see it differently.
"The concept of remuneration has not been clearly established," he said.

Colorado Springs police this month arrested three men allegedly behind a marijuana-for-donation delivery service.
Billygoatgreen MMJ advertised on Facebook and Craigslist and offered to give pot for free while soliciting
"suggested donation[s] towards researching [marijuana] and improving our cultivation operation," according to an
e-mail the service's owners wrote to the Colorado Springs Independent.

Meanwhile, counter-ads have popped up on Craigslist, warning would-be marijuana providers that the cops might be
watching.
Sederberg said the frontier era of Colorado marijuana law will likely civilize quickly. Regulations are coming. Court
rulings will help clarify things. It may be only a matter of time until remuneration comes to include donation.

"The bigger point," he said, "is we need to get the regulated marketplace in place as soon as possible.
"Ultimately, I think a lot of this is going to go away."

In this setting, I think the vice of gambling rather than the vice of alcohol provides a useful reminder that the (inevitable?) development of gray markets and clever marketing schemes is not always a reason to favor prohibition over legalization. After all, the huge on-line poker industry was a big gambling gray market in the US for a decade and it help contribute to the national poker boom that aided so many legitimate businesses. And casinos are amous, of course, for giving stuff away (comps) to get people to come and gamble more.

I raise these points in part to encourage a balanced reaction to any and all of the (too common?) efforts by "pot pioneers" to skirt close to the edge of the law in running their businesses as marijuana reform gathers steam nationwide. As this article highlights, there will surely be lots of legal gray areas as this industry and new state regulation develop. In my view, the fact that some (many? most?) in the pot business will run a market in the gray areas is not itself a reason to conclude the industry should be shut down before the rules of thr road get clarified.

February 17, 2013

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system.

Regular readers will recall that I had the honor, via this post, of being the first
website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals. I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order. But, as of this writing, the USSC's main webpage is still "under construction."

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing. I remain hopeful that the USSC's website will be back in action by the time the CP report is ready. But I suppose only time will tell.

Lengthy discussion of Miller in Michigan through lens of one female murderer

This lengthy new AP article, headlined "Sentenced to life at 16, woman hopes for freedom," provides a details account of the implications and application of the Supreme Court's Miller ruling in Michigan (and elsewhere). As the headline suggests, the bulk of the piece is focused on one female offender, but these excerpts highlight some broader part of the story:

There are more than 2,000 Barbara Hernandezes in this country -- men and women sentenced to live and die in prison for murders committed when they were teens. Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?

The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.
"Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.

Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells. In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.

That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home.
"This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast.
"You can't look at who this defendant is. You have to look at what she did."

Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process. It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago....

More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?

Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing. But officials in state after state have taken widely varying paths to resolution.

California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation. In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive. Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.

In Michigan, the issue is being hashed out on three fronts.
In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime. But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.
"I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.

A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional. But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case.
Without a new law, the issue has also landed in state courts.

When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise. Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.

But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.
After nearly four hours of arguments, the judges sound stumped.
"I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says. "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"

When he adjourns, the room buzzes with talk about what the court will do. A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.

"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."